YESSS!! COURT SPANKS MARKWAYNE AND HIS PREDECESSOR KRISTI FOR TRYING TO PULL A FAST ONE ON THE COURT
by Anne P. Mitchell, Esq. – attorney, law professor emeritus, and author of Federal law
Back in February of last year Noem summarily *cancelled* the collective bargaining agreement (CBA) with the American Federation of Government Employees (AFGE). These federal employees include the transportation officers (TSOs) at TSA.
You see, Noem had signed an unpublicized memorandum specifically naming and targeting the AFGE union, claiming that AFGE was “harming” the TSOs (the very people for whom the AFGE advocates), and “rescinding” the contract (the collective bargaining agreement).
Now, the administration can call it “rescinding” or “withdrawing” or “Yankee doodling” or whatever it wants, but in the legal biz we call that *breaking* a contract, and that puts them in what we in the legal biz call *breach* of contract.
What’s more, the memorandum instructed TSA officials “to propose a plan to ensure that no future Administration may permit TSOs to elect an exclusive representative or engage in collective bargaining absent an intervening statutory change.”
Let me break that down for you – the memo directed TSA to come up with a way so that no *future* administration would be able to *allow* TSA officers to elect representation or take part in collective bargaining unless, in essence, Congress intervenes.
So in March of last year the AFGE sued Noem.
In June of last year the Court issued an injunction prohibiting that memo from taking effect.
So what did Noem do? She issued a *second* memorandum, in September.
This, she maintained (and Markwayne, as her successor, maintains) supersedes the first memo (yes), and *moots* the AFGE’s lawsuit (uh… no).
Then in December she filed a motion to dismiss the AFGE’s lawsuit, claiming mootness.
THEN, in January of this year, while Noem’s motion to dismiss was pending, the Court explained that the existing injunction *also* prohibited Noem from putting the *second* memorandum into effect.
And of course in March of this year Noem was fired, and Markwayne was installed.
Now you’re caught up.
Two weeks ago the AFGE filed an amended complaint, which incorporated Noem’s (now Markwayne’s inherited) efforts with that second memorandum.
Which brings us to this week, when the Court made *very* clear that no, while the September memo, *which is enjoined*, does indeed supersede the earlier memo, chronologically speaking, it does *not* moot this lawsuit. (And also in any event, the AFGE’s amended complaint includes the September memo.)
And *then* the Court points out – and how many times has this happened now? – that the administration’s *own pleadings* (in this case the main case on which their case law relies, and which they had cited for the proposition that their second memorandum had mooted the case), stands for, and I quote, that a “challenge stays live when the relevant challenged condition had been reiterated in the agency’s replacement decision.”
In other words, if you replace a challenged and *enjoined* rule with another rule that contains the *same* objectionable language that got it enjoined in the first place, of *course* it doesn’t moot the case.
Idiots.
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P.S. If you actually read all the way to the bottom please leave a sentence in a comment that includes the word “moo”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about cows – I know that many of you will get it, right, friends? ;~)
(The above was provided by me, Anne P. Mitchell, Esq. – attorney and law professor emeritus.)
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